FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Rya W. Zobel, U.S. District Judge
R. De Vincentis, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
G. Weinberg, with whom Kimberly Homan was on brief, for
Torruella, Selya, and Lynch, Circuit Judges.
case, we affirm dismissal of the added charge in a
superseding indictment on Sixth Amendment speedy trial
grounds. On the facts of this case, we hold that the
constitutional speedy trial clock starts to run from the date
of the original indictment, rejecting the government's
assertion that it runs from the date of the charge first
brought in the superseding indictment. We also reject, on the
facts presented, the government's contention that the
Double Jeopardy Clause and the Due Process Clause are the
only constitutional constraints as to when it may file a
superseding indictment that adds an additional charge, and
the Sixth Amendment plays no role.
the facts from the district court's findings, which we
accept unless they are clearly erroneous. See United
States v. Moreno, 789 F.3d 72, 78 (2d Cir. 2015) (citing
Doggett v. United States, 505 U.S. 647, 652-53
(1992); United States v. Ghailani, 733 F.3d 29,
43-44 (2d Cir. 2013)); United States v.
Aviles-Sierra, 531 F.3d 123, 126 (1st Cir. 2008).
co-owned and operated a luxury watch and jewelry business,
Alpha Omega Jewelers ("Alpha Omega"), which ran
into financial difficulties in 2007. United States v.
Handa (Handa I), 266 F.Supp.3d 443, 445 (D.
Mass. 2017). In late 2007, Handa began to experience severe
"stress, anxiety, depression, and sleep
deprivation." Id. at 446. He was admitted to
the Lahey Clinic in December 2007 after his wife found him
unresponsive at home. Id. Handa left the United
States shortly thereafter, purportedly to seek medical
treatment in India. Id.
2008, Alpha Omega filed for bankruptcy. Id. During
Alpha Omega's bankruptcy proceedings in the District of
Massachusetts, Handa was represented by Massachusetts
attorney Edward J. Quinlan. Id. Also in 2008, Handa
retained Edward McLaughlin, another Massachusetts attorney,
to represent him in connection with the government's
execution of a search warrant on Alpha Omega. Id.
McLaughlin communicated with federal prosecutors to seek the
return of Handa's personal belongings which were seized
during the search. Id. None of Handa, Quinlan, or
McLaughlin were informed that Handa had been charged in a
criminal indictment in March 2011. Id. Nearly six
years later, Handa was arrested on February 22, 2017, when he
returned to the United States. Id. at 447.
openly resided in India from December 2007 to March 2008.
Id. at 446. He then stayed with his brother in
England until sometime in 2010 or 2011, at which point he
permanently relocated to India. Id. Handa retained
his U.S. citizenship and passport at all times during his
residence overseas. Id. Significantly, while living
in India between 2012 and 2017, Handa had numerous
interactions with U.S. government agencies: he used his U.S.
passport to access the U.S. embassy in New Delhi; renewed his
U.S. passport using his Indian address; and applied for
Social Security and Medicare benefits, which he began
receiving in 2012 and 2014, respectively. Id. at
March 3, 2011, unbeknownst to Handa, a federal grand jury had
indicted him on twelve counts of wire fraud in violation of
18 U.S.C. § 1343. Id. at 446. The indictment
alleged that Handa and others had made fraudulent inventory
entries in Alpha Omega's computer system in order to
inflate the company's borrowing base. These entries were
then allegedly incorporated into Alpha Omega's borrowing
base certificates, which were used to obtain additional
financing from the subsidiaries of two banks: Bank of
America, N.A. and LaSalle Bank Midwest N.A. Id.
April 2011, government agents contacted Handa's daughter
and "employed a ruse in an effort to learn of
Handa's whereabouts." Id. Handa's
daughter told the agents that Handa was spending time in
Europe and India, and that they should contact Quinlan.
Id. The agents did not tell Handa's daughter
about her father's indictment. Id. Nor did they
follow up with Quinlan to inquire about Handa's
whereabouts or to inform Quinlan about Handa's
in August 2011, the government applied to the International
Criminal Police Organization ("INTERPOL") for a Red
Notice, which allows INTERPOL to send an alert to member
countries notifying them that the United States has issued an
arrest warrant for an individual. Id. at 446-47. The
Red Notice for Handa was issued on November 26, 2012.
Id. at 447. The government took no further action
until March 2014, when INTERPOL-Washington requested that
INTERPOL-New Delhi check its databases to locate Handa.
Id. INTERPOL-New Delhi responded that it could not
locate Handa without Handa's Indian address and passport
number. Id. INTERPOL-Washington never provided the
requested information to INTERPOL-New Delhi. Id.
February 22, 2017, Handa traveled to Los Angeles, where he
was arrested upon arrival. Id.
District Court Proceedings
asserted his Sixth Amendment right to a speedy trial during
his arraignment on March 16, 2017, id., and filed
his motion to dismiss on speedy trial grounds on April 14,
April 26, 2017, two days before its response to Handa's
motion to dismiss was due, the government filed a superseding
indictment. The superseding indictment contained the same
twelve wire-fraud counts as the original March 2011
indictment; significantly, it added a new count for bank
fraud in violation of 18 U.S.C. § 1344. The bank-fraud
count alleged that Handa had defrauded "a
federally-insured financial institution . . . by causing
fraudulent borrowing base certificates to be submitted to
LaSalle Bank Midwest, N.A. and Bank of America, N.A. in order
to induce LaSalle and Bank of America to continue to extend
Alpha Omega credit . . . ."
government attempted to excuse the delay by saying that the
bank-fraud charge was the product of a new investigation,
which had managed to determine that Bank of America, N.A. and
LaSalle Bank Midwest N.A. were federally insured, and thus
were "financial institutions" under the bank-fraud
statute. United States v. Handa (Handa II),
270 F.Supp.3d 442, 443 n.2 (D. Mass. 2017). On May 8, 2017,
the government ...